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