Tuesday, September 04, 2018

Why Our Constitution Had No Bill of Rights

Charles Haire | Shutterstock.com

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
– The Tenth Amendment

Our original Constitution contained specific restrictions on the federal government to prevent the abuse of power against the people. 

It granted the right to trial by jury and limited the punishment for treason. It forbade laws targeted at individuals. Ex post facto laws to restrict retroactive punishment under new laws were prohibited. It established habeas corpus, to protect its citizens from unlawful detention or imprisonment. It set guidelines for appropriated national emergencies, and prohibited granting of titles of nobility.

But the Constitution that emerged from the 1787 Convention contained no bill of rights. This was their biggest faux pas that made their lives miserable during ratification.

The omission of a bill of rights in the Constitution of 1787 was not an accident – it was planned. 

The state delegations in Philadelphia Hall voted unanimously against including a bill of rights in its final rendering. They collectively ascertained a bill of rights in the context of the Constitution was totally unnecessary. They resolved that it was not an exigency because the powers granted to a government controlled by the people were restricted and defined. And government could only exercise powers assigned to them by the Constitution. They concurred that they had not granted authority to the federal government to violate any of the sustainable rights that belonged exclusively to the people.

“Liberty must at all hazards be supported. We have a right to it, derived from our Maker.”
– John Adams

Delegate James Wilson from Philadelphia objected to the inclusion of a clause in the Constitution that would prevent Congress from passing laws that abridged free speech. He reasoned, “There is given to the general government no power whatsoever concerning it.” Since religious freedom was a primary concern for those who migrated from across The Pond, many delegates abdicated for a provision in the new governing document to protect religious choice. But Edmond Randolph from Virginia emphatically emphasized, “No part of the Constitution, even if strictly construed, will justify a conclusion that the general government can take away or impair the freedom of religion.”

There were many arguments between delegates about issues that influenced migration to America. During the drafting, concerns for lack of representation in civil cases was seen as unfair since only those with money could defend themselves in a court. Over half the delegates expressed concerns there were no provisions addressing cruel and unusual punishment. And there was no provision for the citizenry to own guns and maintain a militia to disband the government if it abused its delegated powers. The Constitution’s defenders contended a bill of rights was unnecessary since the limited enumerated powers of the government simply did not include the power to violate those rights.

“It has often been our best intentions, not our worst, which have caused us disarray.”
– Neil Scythe

It soon became obvious to many an inclusion of a bill of rights would likely be more dangerous than beneficial in uniting the colonies. A consensus was developing; a list of rights granted to the people by the government would be misconstrued and misinterpreted and negatively effect its ratification. Since delegates would have to sell this concept of a government of the people by the people, for the people, one controlled by the people to the colonies, how could they justify this? Why did they have to validate every right granted to the people if it was controlled solely by the people? This was an oxymoron and a self-defeating inclusion in this penchant governing concept. 

A bill of rights also would suggest the national government had powers the people never gave them. And any list of rights would be incomplete. It would endanger all rights not included in it.

“The general government is not to be charged with the whole power of making and administering all laws.”
– James Madison

Alexander Hamilton sealed the deal that ended most of the debate over the issue of a bill of rights. He announced that a bill of rights, “Would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?” This seemed to temporarily quell the storm long enough for dissenters to agree on this ostensible provision. But it left many still talking to themselves as they voted to accept the new Constitution filled with more compromises than plea bargains in juvenile court.

“Powers to the state governments must be more defined.”
– John Jay

Our framers' idealism that a bill of rights pertained to a government with “unlimited powers” and was not necessary for one with extremely limited powers came back to haunt them like Dickens’ ghost of Christmas past. Few colonies bought into this logic. The day the Constitution was unveiled, this flaw in their logic was revealed as meetings were called in taverns, town halls and village squares across the land. Few of them postulated our framers' logic that those who owned the government could control it! They were much more insightful than many of America’s most scholastic patriots.

“The greatest lesson in life is to know that even fools are right sometimes.”
– Winston Churchill

Ratification was not going to be a walk in the park. The most contentious criticism was the bill of rights proposed at the Convention by George Mason was not adopted. Able, articulate men used newspapers, pamphlets and public meetings to debate it for almost a year. When it seemed we’d never gain nine states to ratify the Constitution, James Madison proposed the first act of Congress would be to adopt a bill of rights. In June 1788, government under the Articles of Confederation officially ended but it was not until May 1790 that the renegade state of Rhode Island gave in and ratified the Constitution.

“The harder the conflict, the more glorious the triumph.”
– Thomas Paine

W.C. Fields told us, “You can't trust water: Even a straight stick turns crooked in it.” He also said, “You can fool some of the people some of the time and that's enough to make a decent living.” Our founders had the best intentions when they created a government of free men to govern free men. One with divided, specific enumerated powers with checks and balances to insure it would never stray from its defined limits. But they had more faith in the nature of man than our colonies had in themselves. Although they didn’t see the writing on the wall, the colonies did. And they demanded that their rights be chiseled in stone.

“Time makes more converts than reason.”
– Thomas Paine

George Washington said: “The destiny of the republican model of government is deeply staked on the experiment entrusted to the hands of the American people.” And that was the biggest problem. Our founders expected us to maintain the growth of government since it would never control itself. One can only wonder what this country would be like today if the colonies did not demand a bill of rights! Too many lost sight of their patriotic duty once the Revolution ended. Today, the politician who tries to rein in the growth of government is accused of felonious capital crimes.

“The Bill of Rights wouldn’t make it through the first committee in Congress if it was written today.”
– Alan Wong

The colonies convinced our founders that as government expands liberty contracts. They wouldn’t sign on the bottom line if they didn’t have their basic rights protected from the hand of federalism. 

“I suspect that the framers of the Bill of Rights have long since rolled over in their graves.”
– Jay Parini