The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

The Clash of Values

This brief review of the main points of contention between the Federalists and the Anti-Federalists shows that they were in disagreement on some very fundamental issues. To the Anti-Federalists, the new Constitution posed a threat to liberty, order, and justice, whereas the Federalists believed that it would secure these values.

Liberty depends on rule of law. Yet, as the Anti-Federalists repeatedly argued, the new system rested on a flagrant disregard of the forms of legality. The delegates to the Philadelphia Convention were sent to revise the Articles of Confederation, not to write a new Constitution. James Madison responded in Federalist 40 with the argument that even if the Framers had exceeded their powers (which he flatly denied), it was in the best interests of the country to substantially alter the system. Such changes were legitimate, he suggested, if they were “calculated to accomplish the views and happiness of the people of America” and were approved by them.

Liberty also depended upon republicanism, said the Anti-Federalists, which in turn depended upon maintaining the primacy of the States. History and political theory persuaded the Anti-Federalists that free republican governments could extend only over small territories with homogeneous populations. Small republics were stable and orderly because they were public-spirited, enjoyed voluntary obedience to the laws, and were closely controlled by the people. Many Anti-Federalists preferred the simplicity of agrarian life to the complexity of a strife-ridden industrial society, and most agreed with Brutus that “in a republic, the manners, sentiments, and interests of the people should be similar. If this is not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other.”

But the Federalists envisioned a different kind of America, and vigorously challenged this view. Homogeneous republics were possible only under the primitive conditions of pre-commercial society. “In every community whose industry is encouraged,” said Hamilton, “there will be a division of it into the few and the many.” And when this occurs, the innocence of agricultural life is lost. The Anti-Federalists criticized the man of commerce as rootless and greedy—“immersed in schemes of wealth” and “the last to take alarm when public liberty is threatened”; but they could not deny that America was already committed to a commercial order, and that the landed interests were fundamentally part of, and dependent upon, the commercial life of the nation. As Herbert Storing has observed, “The basic problem of the Anti-Federalists was that they accepted the need and desirability of the modern commercial world, while attempting to resist certain of its tendencies with rather half-hearted appeals to civic virtue. But such restraints, the Federalists replied, have never worked and will never work.”

The solution, argued Madison in Federalist 10, was the extended commercial republic proposed by the Constitution. A loosely knit confederation of small republics was neither desirable nor possible. Small republics might even pose a threat to liberty because they were governed by single-minded majority factions that are difficult to control. Such factions tend to be overbearing, and even tyrannical. They become intolerant of the rights of wealthy property owners, small religious sects, and other minority groups because they have few differences among themselves. The system of representation adopted by the Framers was preferable, said Madison, because it established a large commercial republic in which majority factions would represent diverse populations with different interests. Majority factions of this kind would be more moderate than small, homogeneous factions, since they would be forced to compromise many of their positions in order to function as a majority. The Federal government, in other words, would have a conservative, moderating influence on the affairs of the people, checking the radical elements in the States—like Daniel Shays.

Although the Federalists won the argument, we should not presume that the Anti-Federalists were wrong about any or all of these issues. The inquiring student, having examined the debates thoroughly and objectively, may well conclude that the Anti-Federalists were right about certain matters. For we must not lose sight of the fact that the debate over the Constitution was a political debate, and that both sides were seeking to persuade their fellow countrymen that their position was the correct one. In the course of the debate, both sides tended to exaggerate their claims, the Federalists playing down the fact that the Constitution did indeed confer great power on the Federal government, and the Anti-Federalists overstating the deficiencies of the Constitution.

Moreover, we should not over-inflate the effect and significance of the Anti-Federalists’ victory in securing adoption of the Bill of Rights. For the Bill of Rights neither increased nor decreased the powers of the Federal government. The first ten amendments simply made explicit what was already implicit in the Constitution. Perhaps this is why the Federalists were only half-hearted in their opposition to a bill of rights, and in the end readily acceded to the demands of the Anti-Federalists.

Although no formal agreements were made, ratification in many States was conditioned on the understanding that the first order of business in the first Congress would be the preparation of a bill of rights for submission to the States. Toward that end, five of the States sent long lists of proposed amendments to Congress for consideration. These amendments, it should be borne in mind, were motivated as much by a desire to whittle down the powers of the Federal government as by a desire to protect civil liberties.

A review of the bill of rights proposals of the first three States to make them—Massachusetts, South Carolina, and New Hampshire—shows that the members of these conventions were much more concerned about the rights and powers of the States than about the rights of the people. Massachusetts proposed nine amendments, but only the sixth and seventh—referring, respectively, to indictment by grand jury and jury trials in civil disputes—dealt with individual liberty as such. The rest called for amendments declaring that: (1) all powers not expressly delegated were reserved to the States; (2) there shall be one representative for every thirty thousand persons until there are two hundred representatives; (3) Congress shall not exercise its “times, manner, and place” powers unless a State neglects or refuses to act or subverts the right of the people to free and equal representation; (4) Congress may not impose direct taxes unless there is insufficient money arising from imposts and excise taxes, and certain other conditions are met; (5) Congress may not create monopolies giving certain merchants an exclusive advantage; (6) The Supreme Court shall have no jurisdiction over disputes between citizens of different States unless the amount in contention is at least $3,000; (7) Congress shall never consent that a person holding office under the United States shall accept a title of nobility from a foreign state.

In one place the list proposed by South Carolina mentioned the “freedom of the people,” but otherwise it dealt with the issue of “the sovereignty of the several States.” Of the twelve proposed amendments offered by New Hampshire, less than half had a direct bearing on individual liberty. The many amendments proposed by Virginia and New York, which went into great detail, dealt in part with individual liberty and in part with proposed changes to increase the powers of the States.

Thus it may be seen that federalism was an important ingredient of the “Bill of Rights” as finally adopted. The Bill of Rights was, in fact, a concession to the Anti-Federalists and to the States’ Rightists who feared Federal usurpation of State power, particularly in the sensitive area of civil liberties. By its terms, the Bill of Rights applied only to Congress (the Federal government) and exempted the States. Viewed in historical perspective, its purpose was two-fold: (1) to assure each individual that the Federal government would not encroach upon his civil liberties, and (2) to assure each State that the Federal government would not have jurisdiction over most civil liberties disputes between a State and its citizens. Each amendment was a guarantee to the individual and to the States, limiting the powers of the Federal government but not those of the States. On the question of freedom of the press, for example, Congress alone was prohibited by the First Amendment from abridging such freedom, thus leaving the States to establish their own standards of free press under their own constitutions and State bills of rights.

The task of drafting the Bill of Rights and submitting the amendments to the States for ratification fell on members of the First Congress in 1789. James Madison, who had been elected to the House of Representatives, was a member of the special committee that was responsible for sifting through the myriad amendments suggested by the States, and it was under his leadership that the Bill of Rights took shape.

The Bill of Rights as originally adopted by Congress and submitted to the States contained twelve amendments. The first two, proposing a new scale of representation for the House of Representatives and a limitation on increasing the salaries of members of Congress failed to gain ratification, and the last ten, known as the Bill of Rights, became part of the Constitution on December 15, 1791. What is now the First Amendment was originally the third. The amendment restricting changes of Congressional salaries was finally ratified in 1992, and it is now the 27th amendment to the Constitution. Not until the sesquicentennial year of 1941 did Connecticut, Georgia, and Massachusetts formally ratify the Bill of Rights.

C.

The Bill Of Rights

The first ten amendments were proposed by Congress in 1789, at their first session; and, having received the ratification of the legislatures of three-fourths of the several States, they became a part of the Constitution December 15, 1791, and are known as the Bill of Rights.

* * * * *

Some of the State constitutions drawn up during the Revolution included bills of rights. The most famous and influential of these was Virginia’s Declaration of Rights, written by George Mason in 1776. (Mason also had a large hand in writing the Virginian Constitution at about the same time. Strictly speaking, the Declaration of Rights was not part of that constitution.) It is upon Mason’s Declaration of Rights that much of the Bill of Rights of the Constitution is founded. The principal author of the Bill of Rights, however, was James Madison.

All early Americans with any serious interest in politics knew something about the English Bill (or Declaration) of Rights of 1688. But, as in many other matters, American leaders tended to be influenced more by recent or colonial American precedents and example than by those from British history. John Adams and Thomas Jefferson both earnestly supported the idea of a national bill of rights, and so did many other leading men.

We shall now examine those ten amendments, one by one, with a view to grasping their original purpose or meaning. For people of our time, the phrases of those amendments, like the phrases of the original Seven Articles of the Constitution, sometimes require interpretation. What did those words mean, as people used them near the end of the eighteenth century? One way to find out is to consult the first great dictionary of the English language, Samuel Johnson’s, published at London in 1775; or, later, Noah Webster’s American Dictionary of the English Language (1828). It is important to understand precisely, so far as possible, the meanings intended by the men (chiefly James Madison and George Mason) whose phrases are found in the Bill of Rights, because many important cases of constitutional law that affect millions of Americans are today decided on the presumed significance of certain phrases in the Bill of Rights. As the English jurist Sir James Fitzjames Stephen wrote in Victorian times, “Words are tools that break in the hand.” We therefore need to define the concepts which lie behind the words of the Bill of Rights.

Another way to ascertain what the framers of the Bill of Rights intended by their amendments, and what the first Congress and the ratifying State legislatures understood by the amendments’ language, is to consult Sir William Blackstone’s Commentaries on the Laws of England (1765), and the early Commentaries on the Constitution (1833) and Commentaries on American Law (1826), written, respectively, by Joseph Story and James Kent. As eminent judges during the early decades of the Republic, both Story and Kent were more familiar with the constitutional controversies of the first five presidential administrations than any judge or professor of law near the close of the twentieth century can hope to be.

The comments on the Bill of Rights that follow are based on such sources of information, and also on the books, letters, and journals of political leaders and judges from 1776 to 1840.

It should be noted, moreover, that the Northwest Ordinance of 1787 also sheds light on the ideas and ideals of the generation that drafted the Constitution and the Bill of Rights. Passed by the Continental Congress on July 13, 1787, while the Federal Convention was meeting in Philadelphia, the Northwest Ordinance was later affirmed by the first Congress under the new Constitution. Its purpose was to provide a frame of government for the western territories that later became the States of Ohio, Indiana, Illinois, Michigan, and Wisconsin.

The Ordinance has been called our first national bill of rights, or “the Magna Charta of American Freedom.” The great American statesman Daniel Webster said he doubted “whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked and lasting character than the Ordinance of 1787.” In addition to protecting many civil liberties that later appeared in the Bill of Rights, the Northwest Ordinance also banned slavery in the Northwest Territory. The wording of the Thirteenth Amendment (1865) providing for the abolition of slavery in the United States was taken directly from the Northwest Ordinance. On the subject of religion, the ordinance provided that “No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in said Territory.” The Ordinance also declared as a matter of public policy that because “Religion, morality, and knowledge, [are] necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”