The Federalist - Wednesday December 28, 2016
by David Azerrad
Our cherished Bill of Rights, which turned 225 years old this month, is one of the great oddities of American constitutional history. What began as a mere afterthought to the Constitution ended up saving the Constitution from its Anti-Federalist critics, and today looms larger in the American mind than the Constitution itself.
Until the twentieth century, the Supreme Court rarely invoked it. Its rise to prominence since then is largely due to a series of landmark cases in which it was applied, contrary to the intent of its framers, to the state governments. In a curious twist of history, a bill of rights designed to placate Anti-Federalist opposition to the Constitution in the states has become one of the great checks on state power. It’s quite a story.
Were it not for James Madison, who opposed the Bill of Rights before supporting it, we would probably have neither the Constitution nor the Bill of Rights. By rechanneling public opposition to the Constitution into acceptance for a Bill of Rights, he staved off the Anti-Federalist attempts to rewrite the Constitution. Madison is therefore rightly viewed as both the father of Constitution and the father of the Bill of Rights.
Ratifying the Constitution
The idea of a bill of rights didn’t come up until the very last week of the Constitutional Convention. During that summer in Philadelphia, the delegates had discussed many specific rights, some of which found their way into the Constitution (see sections 9 and 10 of Article I), but not a Bill of Rights.
It was George Mason of Virginia who first proposed one. “It would give great quiet to the people,” he argued, “and with the aid of the State declarations, a bill might be prepared in a few hours.” The other delegates, wary of getting bogged down in debates after four months of contentious deliberations, shot down his proposal 10-0. Five days later, the Constitution was signed (although not by Mason) and sent to the states for ratification.
Anti-Federalist opposition to ratification in the states went well beyond the absence of a Bill of a Rights. The Anti-Federalists were highly critical of the Constitution itself. They thought it granted Congress too much power, thereby threatening the states.
“The Constitution is radically defective,” inveighed the great Anti-Federalist essayist Brutus. It vests in Congress “great and uncountroulable powers” that it will use “to annihilate all the state governments, and reduce this country to one single government.”
Another Anti-Federalist, in an essayentitled “Adoption of the Constitution Will Lead to Civil War,” went further and warned: “The new constitution in its present form is calculated to produce despotism, thraldom and confusion, and if the United States do swallow it, they will find it a bolus, that will create convulsions to their utmost extremities.”
What was needed, according to the Anti-Federalists, wasn’t just a Bill of Rights, but a second constitutional convention to amend all the defects of the current Constitution. Elbridge Gerry of Massachusetts had first proposed the idea during the 1787 Constitutional Convention, and it resurfaced during the contentious ratification debates in his home state.
Massachusetts eventually ratified the Constitution, but not without enjoining its future representatives in Congress “to exert all their influence, and use all reasonable and legal methods, to obtain a ratification” of nine proposed amendments to the Constitution. These amendments for the most part aimed to curtail the powers of Congress and the federal judiciary. Only two dealt with rights (both relating to juries, none relating to conscience, the press, or arms).
The idea caught on. Whereas the five states that had ratified the Constitution before Massachusetts did so without recommending any amendments, all but one of the other states followed the Massachusetts model. New Yorkproposed 31 amendments, North Carolina 26, and Virginia 20. The Anti-Federalists had failed to prevent ratification, but they had succeeded in discrediting the Constitution for many and in creating a climate of opinion favorable to fundamentally revising it.
Madison’s Bill of Rights
When the first Congress convened in New York in 1789, it had to address the numerous proposals to overhaul the Constitution. Virginia and New York, two of the most important states in the union, had already sent applications calling for an Article V convention of the states to consider “the defects of this constitution.”
Enter Congressman James Madison of Virginia. Madison had played an important role in drafting the Constitution at the convention and in pushing for its ratification as co-author of “The Federalist” papers with Alexander Hamilton and John Jay. Although skeptical of some of the Constitution’s arrangements, he thought it the best Americans could expect and was even more skeptical that a second convention would succeed.
Madison also didn’t place much trust in enumerations of rights, or in any other mere “parchment barriers” to government encroachments on liberty. Instead, he trusted the structural arrangements of the Constitution—like separation of powers, legislative checks and balances, and enumerated congressional powers—to secure the rights of the people.
The challenge he faced was to win broader public support for the Constitution while sidelining the Anti-Federalists and preserving the structural integrity of the Constitution. His brilliant solution was to propose amendments that for the most part did not actually amend the Constitution (some of his original 17 proposed Amendments did, but none of the 10 that were ratified did).
We today tend to overlook this somewhat obvious feature of the Bill of Rights: not a single one of its 10 amendments is, strictly speaking, an amendment. The Bill of Rights’ provisions clarify. They draw out inferences from the text. They specify certain vital components of liberty established in the Anglo-American legal traditions. But they do not amend, alter, or modify. The first real modification of the Constitution was brought about by the Eleventh Amendment, which restricted the scope of judicial power enunciated in Article III.
In large part thanks to Madison, none of the structural amendments favored by the Anti-Federalists made its way into the Bill of Rights. As the political theorist Herbert Storing observed: “the primary significance of the Bill of Rights is seen most clearly in what it does not include.”
The Anti-Federalists were obviously displeased. Congressman Samuel Livermore complained that Madison’s amendments were “no more than a pinch of snuff; they went to secure rights never in danger.” Aedanus Burke, a fellow Congressman from South Carolina, captured the Anti-Federalist sentiment best when he said: “They are not those solid and substantial amendments which the people expect. They are little better than whip-syllabub, frothy and full of wind, formed only to please the palate; or they are like a tub thrown out to a whale to secure the freight of the ship and its peaceable voyage.”
The people, it turns out, thought otherwise. Their main concern had always been the protection of individual rights. Madison used the Bill of Rights to win them over while definitively undercutting the Anti-Federalists. The Constitution was safe.
Our Bill of Rights
Although the amendments in the Bill of Rights did not amend the Constitution, they have not been useless. As Madison expected, they have played an important civic function in reminding Americans of their rights. The average American may not know all that much about the Constitution—one in three cannot name any of the three branches of government—but they definitely know they’ve got rights.
Just as importantly, the Bill of Rights reminds the government that the people possess these rights. For while it is true, as Hamilton points out in “Federalist 84,” that Congress only has those powers specifically granted to it, zealous legislators have been known to encroach upon certain rights in the exercise of their enumerated powers (as have presidents and judges, for that matter).
The Bill of Rights has also certainly played a part in preserving some of America’s exceptional character. Although America suffers from almost all the pathologies afflicting developed nations, it remains an outlier in its religiosity, refusal to criminalize hate speech, and widespread lawful gun ownership. It would be hard not to thank the Bill of Rights in part for this.
The Bill of Rights and the States
Given its Anti-Federalist origins, the Bill of Rights was, of course, never intended to apply to the states. For the longest time, it didn’t. Not that it was applied to the national government all that much, either. Prior to 1925, the courts ruled in only 15 cases that the national government had violated the Bill of Rights (then again, the pre-New Deal government was rather constrained compared to today).
Nineteen twenty-five was the year the Supreme Court ruled, in Gitlow v. New York, that the protections of the Bill of Rights could be applied to the states via the Fourteenth Amendment. Since then, most of the provisions of the Bill of Rights have been made applicable to the states, and most civil liberty cases relating to the Bill of Rights have involved the states (though by no means all of them, e.g. Citizens United v. Federal Election Commission).
The Anti-Federalists, whose desire to better protect the power of the states indirectly led to the Bill of Rights, would no doubt be mystified at this outcome. But in an age in which our First and Second Amendment rights in particular are in the crosshairs of the states no less than the federal government, Americans can be grateful for the protections the Bill of Rights affords. Today, perhaps more than ever, we need our Bill of Rights, and a citizenry that understands the sacred liberties inscribed on this piece of worn parchment.
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