But the Constitution was designed to protect the Americans’ rights from the abusive power of the state legislatures. The Constitution had done so by forbidding the states in Article I, Section 10, from certain actions. In fact, the members of the Philadelphia Convention had not seriously considered adding to the Constitution a bill of rights that would restrict the power of the national government. As delegate James Wilson said, a bill of rights had “never struck the mind of any member,” until George Mason, author of the Virginia Declaration of Rights of 1776, brought the issue up almost as an afterthought in the last days of the Convention, when it was voted down by every state delegation.
But the idea of a bill of rights was too deeply embedded in the Americans’ consciousness to be so easily passed over. George Mason and other opponents of the new Constitution immediately stressed the absence of a bill of rights as a serious deficiency, and they soon come to realize that this was the best argument they had against the Constitution.
Because the Federalists believed that the frenzied advocacy of a bill of rights by the Anti-Federalists masked a basic desire to dilute the power of the national government, they were determined to resist all efforts to add amendments. Over and over again they said that the old-fashioned idea of an English bill of rights had lost its meaning in America. A bill of rights, they said, had been relevant in England where the ruler had rights and powers distinct from those of the people; there it had been used, as in the case of the Magna Carta of 1215 and the Bill of Rights of 1689, “to limit the king’s prerogative.”39 But in the United States rulers had no pre-existing independent governmental power; all rights and powers belonged to the sovereign people who parceled out bits and pieces sparingly and temporarily to their various delegated agents. Since the federal Constitution implied that every power not expressly delegated to the general government was reserved in the people’s hands, a declaration reserving specific rights belonging to the people, said James Wilson, was “superfluous and absurd.”40
The Anti-Federalists were puzzled by these arguments. No other country in the world, said Patrick Henry, looked at government as a delegation of express powers. “All nations have adopted this construction—that all rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers. . . . It is so in Great Britain; for every possible right, which is not reserved to the people by some express provision or compact, is within the king’s prerogative. . . . It is so in Spain, Germany, and other parts of the world.”41 The Anti-Federalists, in other words, continued to presume in traditional terms that governmental powers naturally adhered in rulers with whom the people had to bargain in order to get explicit recognition of their rights.
The Federalists might have eventually been able to carry their case against such conventional thinking about government, had it not been for the intervention of Thomas Jefferson from his distant post as minister to France. Jefferson was not unsympathetic to the new Constitution and to a somewhat stronger national government, but he had little or no comprehension of the emerging and quite original political theory of the Federalists that underlay the new federal political system. For Jefferson, sensitive to the politically correct thinking of “the most enlightened and disinterested characters” of his liberal French friends who still believed that government was something to be bargained with, “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.”42 No matter that his friend Madison patiently tried to explain to him that attempting to write out the people’s rights might actually have the effect of limiting them.43 Jefferson knew, and that was enough, that “the enlightened part of Europe have given us the greatest credit for inventing this instrument of security for the rights of the people, and have been not a little surprised to see us so soon give it up.”44
Jefferson’s belief that the Constitution was basically deficient because of the absence of a bill of rights was picked up by Anti-Federalists already suspicious of the Constitution and its lack of a bill of rights and used with great effectiveness, especially in Virginia, Maryland, and Rhode Island.45 The Federalists were defensive over the issue, and in several state ratifying conventions they had to agree to add a list of recommended amendments, nearly all of which advocated changing the structure of the new government. The Federalists concluded that it was better to accept these amendments as recommendations rather than as conditions for ratification. Otherwise they might have seen the Constitution defeated or at least have had to heed calls for a second convention.46
With nearly two hundred suggested amendments coming out of the state ratifying conventions, and with his good friend Jefferson remaining obstinate on the issue, Madison reluctantly began changing his opinion on the advisability of a bill of rights.47 Although in October 1788 he had told Jefferson that he had never believed the omission of a bill of rights to be “a material defect” of the Constitution, he now declared somewhat disingenuously that he had “always been in favor of a bill of rights” and would support its addition, especially since “it is anxiously desired by others.”48 In his hard-fought electoral campaign for the House of Representatives in the winter of 1788–1789, Madison had been compelled to make a public pledge, if elected, to work in the Congress for the adoption of a bill of rights.49
This promise made all the difference. If the Federalists, who dominated both houses of Congress in 1789, had had their way, there would have been no bill of rights. But once Madison’s personal honor was involved, he was stubbornly bent on seeing it enacted. Besides, as he 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.”50 Yet Madison was determined that his bill of rights would be mainly limited to the protection of personal rights and would not harm “the structure & stamina of the Government.”51 He sifted through the nearly two hundred suggested amendments made by the states, most of which suggested altering the powers and structure of the national government, including such matters as taxation, the regulation of elections, judicial authority, and presidential terms. Madison deliberately ignored these structural proposals and extracted mainly those concerned with personal rights that he thought no one could argue with.
On June 8, 1789, Madison proposed his nine amendments, most of which he believed could be inserted into Article I, Section 9, as prohibitions on the Congress. He also included one amendment to be inserted into Article I, Section 10, that actually prohibited the states, and not just the federal government, from violating rights of conscience, freedom of the press, and trial by jury in criminal cases.
At first his Federalist colleagues in the House claimed that it was too early to bring up amendments. Discussing amendments would take up too much time, especially since there were other more important issues like collecting revenue that the Congress ought to be considering. They told Madison he had done his duty and fulfilled his promise to his constituents by introducing the amendments, and now he ought just to forget about them. But “as an honest man I feel my self bound,” Madison said, and he hounded his colleagues relentlessly.52
In several elegant and well-crafted speeches Madison laid out the reasons why a bill of rights should not be delayed. It would quiet the minds of the people uneasy about the new government, help to bring North Carolina and Rhode Island into the Union, further secure the people’s rights in public opinion without harming the government, and perhaps allow judges to become the peculiar guardians of these declared rights. He answered all the doubts and all the arguments against a bill of rights, most of which were the doubts and arguments he himself had earlier voiced.53
There is no question that it was Madison’s personal prestige and his dogged persistence that saw the amendments through the Congress. There might have been a federal Constitution without Madison but certainly no Bill of Rights. Madison did not
get all he wanted and in the form he wanted. His colleagues in the House eliminated his preamble, revised some of his other amendments, and placed them at the end of the Constitution instead of incorporating them into the body as he had wished. The House then sent seventeen amendments to the Senate. The upper house not only significantly altered these amendments, but it also compressed them into twelve, eliminating Madison’s proposal to protect certain rights from the states, which he had considered “the most valuable” of all his amendments.54 Two of the twelve amendments—on apportionment of the House and on congressional salaries—were lost in the initial ratification process.55 Still, when all is said and done the remaining ten amendments—immortalized as the Bill of Rights—were Madison’s.
The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to assemble, and to petition the Government for a redress of grievances.” This has been the most important amendment invoked by the courts in modern times, applying not just to the federal government but also to the states.56
The Second Amendment states that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Because of its awkward wording, this amendment has become one of the most controversial at the present time. Its framers, of course, had little awareness of the distinction drawn today between a collective and an individual right to bear arms, and certainly they had no modern conception of gun control.57 The Third Amendment, expressing the long-standing English fear of standing armies, limits the power of the government to quarter troops in the homes of citizens. The Fourth Amendment prevents the government from unreasonable searches and seizures of persons and property—an issue in 1761 with which, according to John Adams, the fiery Boston patriot James Otis had given birth to “the child Independence.”58
The Fifth Amendment guarantees the rights of those suspected of crime and prohibits the government from taking private property for public use without just compensation. Amendment VI recognizes the rights of criminal defendants, and Amendment VII protects the right to jury trial in certain civil trials. The Eighth Amendment prohibits excessive bail and fines and “cruel and unusual punishments.”
The Ninth Amendment, which was very important to Madison, states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And the Tenth Amendment reserves to the states or the people all powers not delegated to the federal government and not prohibited to the states. Placing such a clause in the Constitution had been a point of particular concern for the Anti-Federalists. In the Virginia ratifying convention George Mason had warned that “unless this was done, many valuable and important rights would be concluded to be given up by implication.” Indeed, he had said, “unless there were a Bill of Rights, implication might swallow up all our rights.”59
In the early fall of 1789 the Congress passed the amendments and sent them to the states for ratification. By then 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.”60 Anti-Federalists in the Congress 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. 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.”61 They affected “personal liberty alone, leaving the great points of the Judiciary & direct taxation &c. to stand as they are.”62 Before long the Federalists were expressing surprise that the Anti-Federalists had become such vigorous opponents of amendments, since they were originally their idea.63
Unlike the French Declaration of Rights of Man and Citizen issued by the National Assembly in 1789, 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.64 It did not invent human rights that had not existed before, but mainly reiterated long-standing English common law rights. Unlike the French Declaration, which transcended law and the institutions of government and in fact became the source of government and even society itself, the American Bill of Rights was simply part of the familiar English customary law that worked to limit pre-existing governmental power. to find an American version of the French Declaration of Rights of Man and Citizen that asserted the natural, equal, and universal nature of human rights requires reaching back to the Declaration of Independence of 1776.
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.
THE ANTI-FEDERALISTS may have been concerned with rights, but most Federalists had believed that power was what was most needed in the new government. And power to the eighteenth-century American Revolutionaries essentially meant monarchy. If there were to be a good dose of monarchical power injected into the body politic, as many Federalists expected in 1787, the energetic center of that power would be the presidency. For that reason it was the office of the president that made many Americans most suspicious of the new government.
The presidency was a new office for Americans. The Confederation had had a Congress, but it had never possessed a single strong national executive.65 Article II of the Constitution is very vague about the president’s powers. All it says is that the executive power shall be vested in the president and that the president shall be the commander-in-chief of the army and the navy and the militia, when called into service of the United States.
Such an office was bound to remind Americans of the king they had just cast off. When James Wilson in the Philadelphia Convention had moved that the executive “consist of a single person,” a long uneasy silence had followed. The delegates knew only too well what such an office implied. John Rutledge complained that “the people will think we are leaning too much towards Monarchy.”66 But the Convention had resisted these warnings and had gone on to make the new chief executive so strong, so king-like, only because the delegates expected George Washington to be the first president. The authority of the presidency would never “have been so great,” privately admitted Pierce Butler of South Carolina, “had not many members cast their eyes towards General Washington as President; and shaped their Ideas of the Powers to a President, by their opinion of his Virtue.”67
Washington’s unanimous election as president was preordained. He was the only person in the country who automatically commanded the allegiance of all the people. He was probably the only American who possessed the dignity, patience, restraint, and reputation for republican virtue that the untried but potentially powerful office of the presidency needed at the outset.
Washington, with his tall, imposing figure, Roman nose, and stern, thin-lipped face, was already at age fifty-eight an internationally famous hero—not so much for his military exploits during the Revolutionary War as for his character. At one point during the war he could probably have become a king or dictator, as some wanted, but he had resisted these blandishments.68 Washington always respected civilian superiority over the army, and at the moment of military victory in 1783 he had unconditionally surrendered his sword to the Congress. He promised not to take “any share in public business hereafter” and, like the Roman conqueror Cincinnatus, had returned to his farm. This self-conscious retirement fro
m public life had electrified the world. All previous victorious generals in modern times—Cromwell, William of Orange, Marlborough—had sought political rewards commensurate with their military achievements. But not Washington. He seemed to epitomize public virtue and the proper character of a republican leader.
Following his formal retirement from public life in 1783, Washington understandably had hesitated to get involved in the movement for a new federal government during the 1780 s. Nevertheless, he had reluctantly agreed to attend the Philadelphia Convention and had been elected its president. After the Constitution was ratified, Washington still thought he could retire to the domestic tranquility of Mount Vernon. But the rest of the country assumed that he would become the first president of the new nation. People said he was denied children in his private life so he could be the father of his country.
ONCE WASHINGTON WAS ELECTED, many people, including Jefferson, expected that he might be president for life, that he would be a kind of elective monarch, something not out of the question in the eighteenth century. Poland, after all, was an elective monarchy; and James Wilson pointed out that in the distant past “crowns, in general, were originally elective.”69 Many Americans in the 1790s took seriously the prospect of some sort of monarchy developing in America. “There is a natural inclination in mankind to Kingly Government,” Benjamin Franklin had warned the Philadelphia Convention. In fact, many like Hugh Williamson of North Carolina in 1787 thought that the new American government “should at some time or other have a King.”70
Although America becoming a monarchy might seem absurd, in 1789 it did not seem so at all. After all, Americans had been raised as subjects of monarchy and, in the opinion of some, still seemed emotionally to value the hereditary attributes of monarchy.71 In 1794 an English traveler was struck by the degree to which New Englanders were becoming “Aristocrats” and were willing to “admit monarchy, or something like it, seeing and dreading the evils of democracy.” They were, he noted, a “haughty” people, “proud of their families, which from their emigration near two centuries since, they trace . . . from the best blood in England. . . . Most of them display their arms engraven over their door, or emblazoned over the Chimney Piece.” A small matter perhaps, but to this foreign observer, “this little trait of pride is strongly indicative of national character.”72 No doubt for many Federalist gentlemen ancestry continued to be important. In visiting Britain, even devout republicans like Jefferson tended to look up their ancestors.
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