A People's History of the Supreme Court

by Peter Irons

  Once he became president, Jefferson would repent his support for judicial review of legislation. He wrote in 1803 of Chief Justice John Marshall’s decision in Marbury v. Madison that the Constitution had become “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” But in 1803, Jefferson was a powerful government official, whose assertion of power had been rejected by the judiciary; in 1789 he wrote as an advocate of the political principle that governmental power must be checked by the Constitution, enforced and interpreted by an independent judiciary. Like most officials, Jefferson’s attachment to principle was tempered by political reality. The Supreme Court ruled against him in Marbury, and he responded as a partisan, just as other presidents—including Jackson, Lincoln, and both Roosevelts—complained about judicial decisions they disliked.

  Keenly aware of Madison’s ambivalence on the need for a bill of rights, Jefferson made a final appeal in his letter of March 1789. “’There is a remarkable difference between the characters of the inconveniences which attend a declaration of rights, and those which attend the want of it,” he wrote. “The inconveniences of the declaration are that it may cramp government in its useful exertions. But the evil of this is shortlived, moderate, and reparable. The inconveniences of the want of a declaration are permanent, aftlicting, and irreparable: they are in constant progression from bad to worse.”

  Just at the time he received this letter from his mentor and friend, Madison was taking his seat in the First Congress—which met in the nation’s first capital, New York City—as a representative from Virginia. Presidential electors had already been chosen under the Constitution’s indirect plan, and they voted unanimously on February 4, 1789, for George Washington, with John Adams of Massachusetts as vice president. On the same day, Madison faced the voters in Virginia. It had been a tough campaign, in which he faced James Monroe, a young protégé of Patrick Henry’s and like Madison a future president. The state legislature, controlled by Antifederalists, sent two of its members, Richard Henry Lee and William Grayson, to the Senate.

  Madison faced attack for his failure to support a bill of rights. He had “never thought the omission a material defect” in the Constitution, Madison explained, and was “not anxious to supply it even by subsequent amendments.” But his election over Monroe by a scant 366 votes, and the fact that both Virginia and New York had called on Congress for a second—and wide-open—constitutional convention persuaded Madison to honor his promise, made in Virginia’s ratifying convention , to press Congress for a bill of rights. Jefferson’s letter provided the final push that Madison needed to begin the amendment process he had long resisted.

  Looking back from the perspective of more than two centuries, the emergence of the Bill of Rights from the First Congress in 1789 has as many ironies as the events in Philadelphia that produced the Constitution in 1787. Much like football teams that shift from offense to defense when they lose the ball, the contending sides in the debate over the Bill of Rights switched positions as they fought for control of a brand-new policital system. Federalists in the new Congress who had deprecated the need to declare the “rights” of the people now pushed for limits on their own powers. Antifederalists who had insisted on a bill of rights to protect the people against legislative “tyranny” suddenly turned around and claimed that Congress had more pressing business.

  The First Congress met in New York City on March 4, 1789, but it lacked a quorum, with only eight senators and thirteen representatives on hand; another month passed before the House held its first official session and elected its speaker, Frederick Muhlenberg of Pennsylvania. The Senate lagged behind, conducting business with temporary officers until both chambers met on April 30 for the inauguration of President Washington, who spoke to members of Congress and a cheering throng of citizens from the balcony of Federal Hall, at the corner of Wall and Broad Streets in lower Manhattan.

  Near the end of his inaugural address, Washington spoke directly to the members of Congress. They would need to “decide how far an exercice of the occasional power” conferred on them to propose amending the Constitution “is rendered expedient at the present juncture by the nature of objections which have been urged against the system, or by the degree of inquietude which has given birth to them.” With this florid language, Washington seemingly hinted that Congress should respond to popular pressure for a bill of rights. Disclaiming “any particular recommendations on this subject,” he nonetheless expressed hope that “a reverence for the characteristic rights of freemen and a regard for public harmony will sufficiently influence your deliberations on the question” of amendments.

  The new president did not propose any particular amendment. He left that job to Madison, who had already begun the laborious task of sifting through some two hundred proposed amendments that eight of the state ratifying conventions had submitted. After eliminating duplicates, the list still approached a hundred. Even when Madison eliminated amendments he considered outside the Constitution’s scope, there still remained dozens from various states. Madison imposed his own rule of thumb on the stack that remained; he would only consider amendments that had been proposed—with allowance for different wording—by at least four states. This made his task much easier, and reduced the pile to twenty-two potential amendments.

  Madison informed the House on May 4 that he planned to introduce the final list of proposed amendments within the month. He hurried to complete this task, worried that Antifederalist calls for a second Constitutional Convention would spread from Virginia and New York to other states. The prospect of a second convention horrified Madison, who confessed his fear that such a convention would “mutilate” the Constitution that had emerged from Philadelphia, Another concern was that Congress had already bogged down in debate over “tonnage duties” and other revenue measures. Several representatives responded to Madison’s announcement on May 4 with arguments that the House had more pressing business than debating a bill of rights. He made a conciliatory reply, expressing hope that the people would “wait with patience” until the House was “at leisure” to consider the issue.

  Madison did not meet his self-imposed deadline, but he finally rose in the House chamber on June 8, 1789. Facing his fellow representatives, who numbered sixty-five, he placed a substantial pile of paper on his desk. Over the past several days, Madison had laboriously written in longhand a speech that would take him at least three hours to deliver. He knew that this might well be the most important address of his political life, certainly one that might rescue the Constitution from its enemies. The men who sat before Madison included El- bridge Gerry, his adversary in Philadelphia, and a bloc of Antifederalists who had switched positions and no longer supported a bill of rights. Their goal now was to press for a second convention and return to the Articles of Confederation, dressed up in new clothes.

  Madison began with an apology. “I am sorry to be accessory to the loss of a single moment of time by the House,” he said. But he did not rise for a trivial purpose. Madison usually spoke in measured, matter-of-fact terms, but he rose to unusual rhetorical heights on this momentous occasion. Harking back to the Revolution, he proclaimed his desire “to extinguish from the bosom of every member of the community, any apprehension that there are those among bis countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled.” Looking beyond the House chamber, Madison asked “the doubting part of our fellow citizens” to credit the Federalists with “that spirit of deference and concession for which they have hitherto been distinguished.” And the Federalists had, in fact, deferred to their adversaries in Philadelphia and made concessions that Madison had opposed in 1787 and now endorsed. Admitting that there remained “a great number of our constituents who are dissatisfied” with the Constitution, Madison continued that the campaign for a bill of rights, “though mistaken in its object, is laudable in its motive.” Since he rarely spoke offhandedl
y, Madison must have meant to rebuke the Antifederalists whose ardor for this goal had cooled. He went on in this dismissive tone. It was primarily a desire for “amity and moderation” between the Federalists and their opponents, Madison implied, that led him “to conform to their wishes, and expressly declare the great rights of mankind secured under this Constitution.”

  His lengthy speech contained not a hint that Madison himself considered a bill of rights essential or even necessary. His goal was simply “to satisfy the public mind that their liberties will be perpetual.” and to accomplish this “without endangering any part of the Constitution, which is considered as essential by those who promoted its adoption.” Madison painted those who had pressed for state bills of rights as desiring to “raise barriers against power in all forms and departments of the Government,” a vast exaggeration of their aims. Lumping together the state bills and the amendments he was introducing, Madison damned both with faint praise, saying that “although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.” Many declarations of rights “do no more than state the perfect equality of mankind,” he sniffed. “This, to be sure, is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a Constitution.”

  Madison clearly resented those who stirred up fears of an omnipotent and oppressive national government. In his mind, “the great danger lies rather in the abuse of the community than in the Legislative body,” referring to Congress. The real danger, he argued, “is not found in either the Executive or Legislative departments of government, but in the body of the people, operating by the majority against the minority.” The majorities he meant by this phrase were not those which elected members of Congress, but those which elected local and state lawmakers. Madison implied that the people had little to fear from the body he addressed, stating that the powers granted to Congress by the Constitution were “circumscribed” and “directed to particular objects” that were limited to those listed in Article I. He conceded that these powers “may admit of abuse to a certain extent,” and even pointed to the “necessary and proper” clause as tempting Congress to exceed its powers. His concessions over, Madison concluded with a triumphant flourish, pointing to the federal courts as “independent tribunals of justice” that “will be an impenetrable bulwark against every assumption of power in the Legislative and Executive” branches.

  Madison made no secret of his disdain for state governments, which he said “are as liable to attack” their citizens’ rights “as the General Government is, and therefore ought to be as cautiously guarded against.” Why, then, did he make the effort to draft a bill of rights, if he saw the states as more dangerous than Congress? His answer to this unseated question was smoothly phrased, but revealed his true feelings. It would be “highly politic,” he said, “for the tranquility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of Government, as a declaration of the rights of the people.” Soothing the public with a bill of rights he considered “unnecessary” was good politics, and Madison was certainly a good politician. The “something” he offered, after all, was better than nothing. And giving Congress nothing to consider might stir more calls to scrap the Constitution.

  What did Madison offer to Congress as a bill of rights? He listed “the amendments which have occurred to me” in order from “firstly” to “ninthly.” His first proposed amendment took inspiration from the Declaration of Independence, suggesting that “there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.” Madison continued with words borrowed from Thomas Jefferson. Governments existed to protect “the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.” He went on to state—in words that only a lawyer could love—that “the people have an indubitable, unalienable, and indefeasible right to change their Government” when they find it “adverse” to their interests. This was precisely the kind of language that Madison considered “unnecessary” in a Constitution. Perhaps he hoped with this verbiage to placate Jefferson, who considered a bill of rights essential, which Madison clearly did not.

  Madison’s second proposed amendment responded to complaints by the smaller states, like Delaware and Rhode Island, that the constitution penalized them by granting one representative for every thirty thousand inhabitants. These two states, in fact, each had just one House member in the First Congress. Madison considered this a petty issue, but he nonetheless proposed that each state have “at least two Representatives” in Congress. His third amendment proposed that changes in congressional salaries could not take effect “before the next ensuing election of Representatives.”

  Not until his fourth proposed amendment did Madison address the real concerns of those who pressed for a bill of rights. He suggested inserting several new clauses in the Constitution, after the provisions in Article I that barred Congress from enacting any “bill of attainder” or “ex post facto” law. It had been Elbridge Gerry of Massachusetts—who had vainly pressed for a bill of rights in 1787—who convinced the delegates in Philadelphia to include in the Constitution these protections against governmental power to punish individuals without trial and for acts that were lawful when they were committed. Madison had not spoken a word in support of Gerry’s motion in Philadelphia, Now he spoke in New York to press for additional rights in the Constitution.

  Madison’s fourth proposed amendment had ten separate paragraphs and included all but a few of the provisions adopted in the Bill of Rights that was later ratified by the states. The first paragraph dealt with religion: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” The next two paragraphs provided that the “right to speak” and “freedom of the press” should remain “inviolable,” and that “the people shall not be restrained from peaceably assembling” and petitioning the government “for redress of their grievances.” These paragraphs formed the basis of what later became the First Amendment.

  The next paragraph in the proposed amendment had three clauses. The first provided that “The right of the people to keep and bear arms shall not be infringed” by the federal government. The second clause—separated by a semicolon from the first—stated that this right stemmed from the need for “a well armed and well regulated militia” to protect the “security of a free country,” presumably from insurrection or invasion. The third clause provided that “no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” This last clause did not survive the congressional gauntlet, but the first two were blended into the Second Amendment, with their order reversed and the semicolon replaced by a comma.

  In recent years, advocates on both sides of the “gun control” issue have debated the “original intent” of those who framed the Second Amendment. Elbridge Gerry, Madison’s adversary in both Philadelphia and New York, offered this defense of the proposed amendment: “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.” Arming the citizens who belonged to state militias, Gerry argued, would deter Congress from establishing a federal army that might oppress or invade the states. Those who now advocate the constitutional “right” of every citizen to “bear arms” of any kind—from cheap handguns to assault rifles—are well advised to read the debates that led to adoption of the Second Amendment. Not a single member countered Gerry’s argument that the “right to bear arms” was limited to members of a state militia. the current opponents of gun control legislation pay little heed to the Framer who spoke most clearly to the “intent” of Congress on this controversial issue.

  Madison followed
this proposed amendment with one that reflected old resentments at the British army’s practice of forcing the American colonists to house and feed its red-coated soldiers. The First Congress debated no more than ten minutes before adopting Madison’s proposal that “No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.” With only minor wording changes, this became the Third Amendment to the Constitution.

  The next four paragraphs that Madison read to Congress dealt with the rights of criminal defendants. Politicians today—responding to the “majority” against which Madison warned—are quick to denounce as “soft on crime” anyone who questions the need for quicker trials, longer sentences, and bigger prisons. More than two centuries ago, Madison spoke for most Americans in urging protections for ordinary citizens against the arbitrary practices of British officials that provoked their colonial subjects to revolt. He proposed that no person be subjected to more than “one trial for the same offence,” which became the Double Jiopardy Clause of the Fifth Amendment. Madison also proposed that no person be “compelled to be a witness against himself,” be “deprived of life, liberty, or property without due process of law,” or be “obliged to relinquish his property, where it may be necessary for public use, without a just compensation.” With minor wording changes, these proposals became part of the Fifth Amendment.

  Madison also proposed the protection of criminal defendants against “excessive bail” before trial and “excessive fines” after conviction. These provisions, which became part of the Eighth Amendment, raised no opposition. But his proposal that Congress ban the inflection of “cruel and unusual punishments” prompted Samuel Livermore of New Hampshire to reply. He argued that “it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps even having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel?” Madison’s proposed amendment passed by a “considerable majority,” but Delaware allowed whipping into the 1950s, and the Supreme Court has upheld capital punishment against charges that it is both “cruel and unusual.” No state, however, now permists cutting off ears as a criminal penalty. In this sense, Madison’s proposed amendment had the “salutary effect” he hoped for.