A People's History of the Supreme Court

by Peter Irons

  Madison included a provision that citizens be “secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and scizures.” He went on to propose jury trials in civil cases, the right to an “impartial jury” in criminal cases, and—near the bottom of the list—a guarantee that “no state” shall abridge “the freedom of the press.” From this hodgepodge emerged parts of the First, Fourth, Sixth, and Seventh Amendments.

  Another proposed amendment was phrased in convoluted words, but in the middle was a provision that the Bill of Rights if adopted “shall not be so construed as to diminish the just importance of other rights retained by the people.” Madison stated his final proposal in clear words: “The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.” These two provisions emerged from Congress, after polishing by committees and debate on the floor, as the Ninth and Tenth Amendments to the Constitution.

  Madison outlined in his lengthy speech almost every provision that later became part of the Bill of Rights. He worked long hours, for more than a month, to perfect his list of proposed amendments and polish the words he spoke to Congress. But his heart was not really behind his careful preparation. Ending his speech, Madison confessed to his fellow representatives that his work “may be deemed unnecessary,” but he saw “no harm in making such a declaration” of rights. “I am sure I understand it so,” he concluded, “and do therefore propose it.” With that ambivalent endorsement of his labors, Madison sat down.

  Madison’s halfhearted speech to Congress seems at odds with the accoladees showered on him since his death—and even during his lifetime—as the “Father of the Bill of Rights.” The facts arc that he did not consider a federal bill of rights essential, and that he proposed amendments partly to placate his political mentor, Thomas Jefferson, and partly to blunt the Antifederalist campaign for a second constitutional convention. He even referred to “the nauseous project of amendments” in a letter to a Federalist friend. Nonetheless, Madison loyally and diligently performed the task he had assumed, and pressed ahead for adoption of the Bill of Rights by Congress and ratification by the states.

  The immediate response to Madison’s speech and list of proposed amendments was compounded of apathy and annoyance. Representative James Jackson of Georgia stated his opinion that “we ought not be be in a hurry with respect to altering the Constitution.” He urged that his colleagues “not neglect the more important business which is now unfinished before them.” Madison shot back that Jackson was “unfriendly to the object I have in contemplation,” but assured the House that “I only wish to introduce the great work” of the Bill of Rights, and that “I do not expect it will be decided immediately.”

  Roger Sherman of Connecticut, who had often sparred with Madison at the Philadelphia convention, noted that his state ratified the Constitution “by a very great majority, because they wished for the Government; but they desired no amendments.” He suggested to the House that “it will therefore be imprudent to neglect much more important concerns for this.” Sherman had signed the Constitution in Philadelphia, and he saw no need for amendments. “I have strong objections to being interrupted in completing the more important business” of Congress, he complained, “because I am well satisfied it will alarm the fears of twenty of our constituents where it will please one.” Madison seemed discouraged by these remarks. He replied to Sherman, in plaintive words, that he was “compelled to beg a patient hearing to what I have to lay before you.”

  Madison’s patience was sorely tested over the month that followed his speech. lardly any member of the House offered full support for the Bill of Rights, and Madison struggled to put his proposals into better shape. On July 21, he “begged the House to indulge him in the further consideration of Amendments to the Constitution.” Once again, House members claimed they had more pressing business, although Madison succeeded in having the project sent to a select committee with a member from each state.

  The Committee of Eleven reported back on July 28. It made few substantive changes to the list Madison had proposed on June 8. Busy with revenue bills, the House promptly tabled the report. Madison faced a constant struggle during the summer off 1789 to force his reluctant colleagues to consider the amendments. Debate did not begin in earnest until August 14. Antifederalists heaped scorn on the whole project. Representative Aedanus Burke of South Carolina dismissed the proposals as “not those solid and substantial amendments which the people expect” but “frothy and full of wind.” He thought “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.” Even the representative who chaired the Committee of Eleven, John Vining of Delaware, apologized for diverting the House from considering “the bill for establishing a Land Office for the disposal of the vacant lands in the Western Territory.”

  When the debate finally began, Roger Sherman of Connecticut moved that the amendments be placed at the end of the Constitution, rather than scattered throughout its existing articles. “The Constitutions is the act of the people.” argued, “and ought to remain entire. But the amendments will be the act of the state governments.” Expecting that Congress would approve at least some of the proposed amendments, Sherman wanted to keep them out of the Constitution itself. Madison opposed this motion, responding that the Constitution should “remain uniform and entire ” . The House first defeated Sherman’s motion but later adopted it. Had the House agreed with Madison, the Bill of Rights—which we now read as a package would have been scattered through the Constitution. Roger Sherman deserves credit for the form of the amendments whose paternity we credit to Madison. This is ironic, because Sherman worked hard and successfully to prevent the Connecticut legislature from ratifying the Bill of Rights, something it put off until 1939.

  The House debates on the Bill of Rights did not rise to the rhetorical heights, or rival the political passions, of those in the Philadelphia convention in 1787. In truth, they were dull and dispiriting. At on point, John Vining ridiculed a motion by Roger Sherman as reminding him of “an act to amend a supplement to an act entitled an act for altering part of an act entitled an act for certain purposes therein mentioned.” The substantive provisions of the amendments submitted by the Committee of Eleven underwent numerous wording changes, and finally emerged on August 24 as a resolution to the Senate. The House recommended seventeen amendments; the first and longest: revised the apportionment of House seats by a complicated formula, designed to keep the total number in check as the nation’s population grew. The second, to which little objection was voiced, prevented laws that raised congressional salaries from taking effect before the next House elections.

  The ten amendments we now call the Bill of Rights began in the House resolution with the third, which stated that “Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” The fourth on the list contained the rest of what became the First Amendment, protecting freedom of speech and of the press, and rights of assembly and petition. Those dealing with the rights of criminal defendants were presented in forms that emerged in the final Bill of Rights with minor wording changes,. The House list also included what arc now the Ninth and Tenth Amendments, guaranteeing to “the people” those “rights” not enumerated in the Constitution, and reserving to the states those powers not granted to Congress by the Constitution.

  The Senate began consideration of the House resolution on September 2. But that body met in closed session until 1794, and no record exists of its debates on the Bill of Rights, although the senate journal includes a record of motions and votes. We do know that the Senate tinkered with the apportionment proposal and removed protection against military service by conscientious objectors to war. In their most significant action, the senators dropped the article in the House resolution that Madison
considered “the most valuable” of the lot. This proposed amendment, fourteenth on The House list, read: “No state shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.” Had it remained, and been adopted, the rights of the people against oppression by the states would have been secured well before the Supreme Court finally began applying the Bill of Rights to the states. That did no happen untill 1925, when it ruled that the First Amendment was binding on the states as part of the “liberty” protected against state infringement by the Fourteenth Amendment, ratified in 1868.

  The Senate concluded its debates on the Bill of Rights on September 10, sending back to the House a revised and pared-down list of twelve amendments. Since it was clear the House would not accept the Senate version without further revision, the two bodies each named three members to a conference committee, which Madison chaired. The most significant change to emerge from this committee was that Madison succeeded in restoring the House version of what became the first clause of the First Amendment, providing that “Congress shall make no law respecting an establishment or religion.” Madison had labored for years in Virginia against state support for established religions, and he now imposed the same ban on the national government.

  The House adopted the final version of the twelve proposed amendments by a vote of thirthy-seven to twenty-four on September 24, and the Senate followed suit the next day, without a recorded vote. On October 2, President Washington sent copies to each state governor, with a brief letter of transmittal.

  There remains virtually no record of devates over the Bill of Rights in the state legislatures. Few lawmakers spoke from written texts, and speeches were not transcribed by reporters. We must rely on letters by partisans and on newspaper accounts, which often reflected personal or political bias. We do know that ratification of the Bill of Rights, which required the assent of eleven states, on for more than two years.

  New jersey was the first to ratify, on November 20, 1789, although it rejected the second proposed amendment, dealing with congressional salaries. Before the process was completed, the first two of the twelve amendments adopted by Congress were defeated in the states. In recent years, many people—including Supreme Court justices have noted that the protections of religion, speech, press, and assembly were placed in the First Amendment. They argue from this fact that the Framers intended to elevate these rights to a “preferred position” in the Bill of Rights, to underscore their primacy in protecting the people’s rights. Of course, had the states not rejected the first two proposed amendments, the First Amendment would now be the Third. Claims that “my rights are protected by the Third Amendment” do not have quite the force of invoking the First.

  Maryland, the two Carolinas, New Hampshire, and Delaware approved the Bill of Rights with little dissent. North Carolina actually first joined the Union when it finally ratified the Constitution on November 21, 1789. One month later, its legislature adopted all twelve proposed amendments. New York, with Antifederalist George Clinton still its governor, ratified all but the second proposed amendment in February 1790. Clinton had rallied his troops against the Constitution with appeals for a bill of rights, and he was stuck with that record. Privately, he regretted his earlier enthusiasm. After his state’s ratification, he wrote to a relative that his legislature “has transacted no business of very great consequence, unless the adoption of the trivial and equivocal amendments may be so styled”.

  After the New York vote, Pennsylvania and Rhode Island joined the parade. That made nine of the required eleven states; the Constitution required ratification by three fourths of the states, which now numbered fourteen. Vermont gave up its status as an independent republic and joined the Union in 1791. Its legislature ratified all thirteen proposed amendments in November 1791, two years after President Washington submitted them to the states. One state was still needed before the Bill of Rights became part of the Constitution. Connecticut and Georgia, which were both Federalist strongholds, refused to ratify the amendments, largely because their political leaders felt that the Constitution left such matters to the states. Massachusetts also withheld its vote, the result more of legislative bumbling than clear intent. The two houses of the “Great and General Court” of Massachusetts bickered over the amendments and never joined in a final vote. As a result, the failure of Connecticut, Georgia, and Massachusetts to ratify the Bill of Rights made Virginia the crucial eleventh state.

  Virginia actually took up the proposed amendments shortly after President Washington submitted them in October 1789. But the state senate, in which Patrick Henry served, was firmly in Antifederalist hands. The state’s two federal senators, Richard Henry Lee and William Grayson, sent a letter to Governor Beverly Randolph—the brother of Edmund—stating that “it is with grief that we now send forward propositions inadequate to the purpose of real and substantial Amendments, and so far short of the wishes of our Country.” Amazingly, the Virginia senate even rejected the proposed Third Amendment—now the First—which drew its inspiration from that state’s Declaration of Religious Freedom. The Virginia Antifederalists were so consumed with hostility to the national government that they would deny federal protection of rights they jealously claimed for themselves.

  The legislative logjam was finally broken when Senator Lee and George Mason—who had refused to sign the Constitution in Philadelphia—changed their minds and grudgingly agreed to support ratification of the Bill of Rights Both men feared that the Antifederalists, who looked ahead to the next congressional elections, would be tarred as opponents of the people’s rights. Mason, who had first blasted Madison’s proposals as “milk and water propositions,” now found “much satisfaction” in the Bill of Rights. Even the oratory of Patrick Henry could not overcome these defections, and the Virginia legislature finally ratified all twelve proposed amendments on December 15, 1791, a day now celebrated by federal proclamation as “Bill of Rights Day.”

  James Madison had stated in the Virginia convention that ratified the Constitution his belief that amendments to that document would be both “unneccessary and dangerous—unnecessary, because it was evident that the general government had no power but what was given it“ by the Constitution, and “dangerous, because an enumeration which is not complete is not safe.” He also dismissed the need for “parchment barriers” against the powers of Congress. Two years later, after the states ratified ten of the twelve proposed amendments, Madison wrote that adoption of the Bill of Rights ”will kill the opposition everywhere, and by putting an end to dissatisfaction with the Government. itself, enable the Administration to venture on measures not otherwise safe.” The primary advocate in Congress of a bill of rights displayed an attitude toward the “nauseous project” that moved, grudgingly and solely for political reasons, from hostile opposition to lukewarm support.

  Considering the ambivalence of its sponsor, why should Americans now celebrate—even venerate—the Bill of Rights? The reasons have much to do with the survival of the Constitution over more than two centuries, despite a bloody Civil War and continuing discord between the “faction” that Madison felt were inevitable in a democratic society. Adoption of the Bill of Rights was the price we paid for the Constitution, and its protections of fundamental freedoms—for religious and political dissenters, even for those charged with serious crimes—have been applied by the Supreme Court to reach every government official in the land. As Justice Robert Jackson wrote in 1943, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” With the ratificaiton of the Constitution in 1789 and the Bill of Rights in 1791, it became the task of the Supreme Court to breathe life into their “parchment” provisions.

  SECTION II

  “It Is a Constitution We Are Expounding”


  8

  “The Court Is Now Sitting”

  The first session of the Supreme Court of the United States was hardly an auspcious or momentous occasion. On February 1, 1790, three men gathered at the Royal Exchange Building, an undistinguished two-story brick edifice at the foot of Broad Street in New York City. With a population of 33,000, New York was the nation’s mercantile center and had more than its share of lawyers. Many leaders of the city’s bar attended the “uncommonly crowded” Supreme Court session in a makeshift courtroom. The audience buzzed with anticipation as the Chief justice of the United States, attired in a flowing black-and-red robe, took his seat behind the bench. The court clerk readied his quill pen to record the Court’s business, and the court crier prepared to still the crowd with a stentorian call to order.

  The mood in the courtroom quickly turned from anticipation to anticlimax. In addition to the Chief Justice, only two of the five associate justices appeared that morning. Congress had set the Court’s membership at six in the Judiciary Act of 1789, which meant that four justices must be present to constitute a quorum. With only three justices behind the bench, the Court was unable to transact any business that first day, and the Chief Justice quickly adjourned the session. The disappointed spectators drifted away, most to their offices in the legal and financial district of lower Manhattan. With no assurance that a quorum would appear the next day, few returned to witness the first official meeting of the nation’s highest judicial tribunal.