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

PART 5

Defending the Constitution: The Struggle over Ratification and the Bill of Rights

POINTS TO REMEMBER

1. After the Constitution was signed by the delegates to the Federal Convention in Philadelphia, it was submitted to the States for ratification. The approval of only nine States was needed to make the Constitution the supreme law of the land. The delegates to the State ratifying conventions were elected by the people, thereby placing the Constitution on a democratic foundation. The Americans were the first to establish popularly based constitutions.

2. The Anti-Federalists opposed the Constitution on a number of grounds, but their chief objection was that it gave too much power to the Federal government and encouraged consolidation.

3. The authors of The Federalist attempted to explain and defend the Constitution in a series of 85 essays that were published in New York newspapers and later distributed throughout the country. They agreed that the new government would be powerful, but denied that it would be too powerful or that it would be a threat to liberty and the independence of the States.

4. The federal system of government established by the new Constitution was a uniquely American contribution to the science of government. It was rooted not in abstract political theory but in compromise and the practical necessities of the time. It is unlikely that the Constitution would have been acceptable to the American people had the Framers stripped the States of their reserved powers and created a unitary form of government.

5. One of the major concerns expressed by the Anti-Federalists was the issue of local control of civil liberties. They insisted that the Federal government would be so powerful that it would trample on the rights of the people and the rights of the States. To correct this problem, they demanded that a Bill of Rights be added to the Constitution. The Federalists, on the other hand, argued that a bill of rights was unnecessary because no power had been delegated to the Federal government to regulate such matters as freedom of the press and religion in the first place. A Bill of Rights was nevertheless added to the Constitution in 1791.

6. The addition of the Bill of Rights was the chief accomplishment of the Anti-Federalists. It strengthened and affirmed the federal principle of the Constitution. It not only assured the people that the Federal government was prohibited from abridging their liberties, but it also assured the States that they would retain jurisdiction and control over most civil liberties disputes between the States and their citizens.

7. The American Constitution seeks to prevent rule by tyrannical majorities as well as tyrannical minorities. But in a democratic republic the problem of majority factions is usually the more difficult to resolve. In Federalist No. 10, James Madison explained that by establishing an extended, commercial, federal and democratic republic, the Framers sought to reduce and possibly eliminate the threat of government by tyrannical majorities. The system of representation established by the Framers is the key to an understanding of how the Constitution deals with this basic problem of democratic government.

8. The Bill of Rights is not a complete catalogue of all the rights that are enjoyed by the American people and are protected by the Constitution. As provided by the Ninth and Tenth Amendments, the people and the States retain jurisdiction over additional rights under their State constitutions and bills of rights, which the Federal government may not touch.

Signed on September 17, 1787, by all the delegates who still remained at Philadelphia—except Gerry of Massachusetts and Randolph and Mason of Virginia—the text of the proposed Constitution was dispatched to New York City, where the last Congress under the Confederation was meeting. Then there commenced a struggle which would last for nearly a year to persuade the several States to accept the new Constitution. It would be a conflict with much shouting but no shooting.

The Great Convention, in submitting the proposed Constitution to the Congress of the Confederation, had requested that Congress send copies to the State legislatures. Those legislatures, in turn, were asked to issue instructions for the election of delegates to a convention to be held in each State. At these State conventions, the new Constitution would be debated. Each State convention would then ratify or reject the document. If nine states ratified the Constitution, it would take effect as the country’s organic law, supplanting the Articles of Confederation.

This method of adoption, it is important to remember, dates back to some of the State constitutions approved during the revolutionary period. It was intended to give the Constitution a popular base and to establish the new government on a firm democratic foundation. This foundation was lacking under the Articles of Confederation because our first national constitution was never submitted to the people for approval. Although Article VII of the new Constitution specified ratification by the States, the voters in each State elected the delegates who served in the State ratifying conventions. Hence the Constitution of 1787 was ratified by the people and by the States, or by “the people in the States” (rather than simply by the States or by the people at large). In sharp contrast, new constitutions and constitutional amendments in parliamentary systems of government are often written and approved by the parliament, and the consent of the electorate is not sought or required. The Americans were the first to establish popularly based constitutions.

From a legal standpoint, the American Constitution, at its inception, was a “revolutionary” document. It may be doubted whether the Constitution would have prevailed had it not been approved by the American people. The delegates to the Federal Convention, as we noted earlier, were representatives of the States and were acting in response to a call by the Congress of the Confederation. They were sent to Philadelphia not to write a new Constitution but to “revise” the Articles of Confederation. No change in the Articles was permitted unless all thirteen State legislatures agreed. Nevertheless, the delegates to the Federal Convention boldly exceeded their mandate by proposing an entirely new government that was to go into effect when only nine State conventions ratified the Constitution.

The two factions on opposite sides in this contest over the adoption of the Constitution are called the Federalists and the Anti-Federalists. These terms are mildly confusing, for at the time when the Great Convention’s deliberations had begun, the men friendly to the Articles of Confederation thought of themselves as favoring a federal system of government; by comparison, the advocates of a new constitution who intended to create a stronger national union are often called “Nationalists” by historians of the period. A few years later, these two divisions of opinion would harden into regular political parties called, respectively, Federalists (friendly toward a strong central government) and Republicans or Democratic-Republicans (many of whom formerly were Anti-Federalists).

But by September 1787, the Nationalists were calling themselves Federalists. Like the Anti-Federalists, they sought to persuade the voters through speeches, pamphlets, newspaper articles, and personal correspondence. As we noted earlier, three of their leading men—James Madison, Alexander Hamilton, and John Jay—wrote eighty-five essays for New York newspapers under the pseudonym of “Publius.” These essays, known as The Federalist, endeavored to explain and defend each provision of the Constitution and its underlying principles of government. To this day, The Federalist is regarded as one of the most insightful sources of understanding about the nature and purposes of the American political system. Anti-Federalist literature, previously uncollected and much ignored, is now available to the modern reader. Herbert Storing’s The Complete Anti-Federalist (7 vols., 1981) is the most complete and up-to-date version.

Much knowledge about the Constitution is also to be gained by reading the debates in the several State ratifying Conventions. When the Philadelphia Convention adjourned on September 17, 1787, many of the delegates returned to their native States to defend the new Constitution and urge its adoption. Some, such as James Wilson of Pennsylvania, were elected to their State’s convention and thus entered into a second round of deliberations on the Constitution. These ratification debates contain a rich source of both Federalist and Anti-Federalist thought on the Constitution. They were later collected and published as a four-volume work by Jonathan Elliot under the title of The Debates in the Several State Conventions on the Adoption of the Federal Constitution (1830). James Madison, it is interesting to note, was the last surviving member of the Federal Convention when he passed away in 1836. The comprehensive notes that he took at the Federal Convention were published after his death, and Elliot added them as a fifth volume to his Debates in 1840. Taken together, these works—Madison’s Notes, Elliot’s Debates, The Federalist, and Storing’s The Complete Anti-Federalist, represent the principal, though by no means the entire, source material of original documents on the framing and adoption of the United States Constitution.

A.

THE ANTI-FEDERALIST PERSUASION

On the eve of the Federal Convention, the Anti-Federalists were basically in agreement with the Federalists that the Articles of Confederation needed to be changed. They admitted that the Articles were weak and that the powers of Congress, at least those respecting domestic and foreign commerce, needed to be strengthened. But they did not sense a need to abandon the Articles entirely and substitute a new system. Above all, the Anti-Federalists opposed any fundamental change in the existing relationship between the Confederation government and the States. They were strong advocates of States’ Rights who believed that self-government, independence, and individual liberty were best protected at the local level. A distant and powerful central government over which they might exert little control or influence represented a threat to the values they cherished.

The Constitution Establishes a Consolidated Empire

Thus the Anti-Federalists’ main objection to the proposed Constitution was that it created a central government that was too strong. “We drew the spirit of liberty from our British ancestors,” Patrick Henry told the delegates of the Virginia ratifying convention, and “by that spirit we have triumphed over every difficulty. But now, Sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country to a powerful and mighty empire. If you make the citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together. Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances in this government.” Like other Anti-Federalists, Henry saw no need for a powerful Federal government, preferring instead a loose-knit confederation that allowed the States to determine their own needs and interests. Why, asked Henry, should Virginia, a State with a large population, vast resources, and extensive territory, compromise its sovereignty and share power with smaller, less influential States? Given the great political, economic, cultural, and geographical differences among the States, was a powerful union either possible or desirable?

The Anti-Federalists did not think so. “Agrippa,” the pseudonym of a Boston Anti-Federalist, warned the citizens of Massachusetts that the new Constitution was impractical and dangerous. “We find,” he said,

The Constitution Establishes an Aristocracy

The size and diversity of the existing confederation, in other words, led the Anti-Federalists to believe that the union envisioned by the Framers should not even be attempted.

By republicanism, the Anti-Federalists meant democratic self-government, government close to the people, limited in scope, in which the representatives were held directly accountable through frequent elections. The problem with the new Constitution, they argued, was that it gave representatives too much power and independence. Once elected, representatives would be far from home, comfortable in their jobs, enjoying a big salary that they set themselves. They would be living in some distant, yet-to-be-built city far removed from the watchful eye of the people they represented. Under these circumstances, they surely would lose touch with their constituents. The system was an invitation to despotism.

These fears and suspicions were also confirmed by certain deficiencies in the Constitution itself. The Constitution, for example, made no provision for recalling elections; and rotation in office, argued the Anti-Federalists, was not frequent enough. A common theme in Anti-Federalist literature was the complaint, as “A Plebian” from New York wrote, that “the power of the general legislature to alter and regulate the time, place, and manner of holding elections [Article I, Section 4] … will place in the hands of the general government the authority whenever they shall be disposed, and a favorable opportunity offers, to deprive the body of the people, in effect, of all share in the government.”

Republicanism also meant rule by the majority. But the Constitution, insisted the Anti-Federalists, seemed to encourage government by minority factions and wealthy aristocrats. There would be too few members in the House of Representatives (only one for every 30,000 persons), and a mere handful of Senators—as few as eighteen if only nine States joined the Union—would be able to block legislation desired by a majority of the people. “Far from being a regular balanced government,” complained “Centinel,” a Pennsylvania Anti-Federalist, “it would be in practice a permanent aristocracy.” Patrick Henry of Virginia echoed these sentiments, contending that the two-thirds requirement for proposing amendments and the three-fourths requirement for their adoption allowed entrenched minorities and “the most unworthy characters” to obstruct the will of the majority. It would be impossible, he argued, to pass an amendment by those difficult means:

Quoting from the Virginia Bill of Rights, Henry went on to assert that “a majority of the community have an indubitable, unalienable, and indefeasible right to reform, alter, or abolish” their government when it becomes inadequate. “This, sir, is the language of democracy: that a majority of the community have the right to alter their government when found to be oppressive. But how different is the genius of your new Constitution from this.”

The Constitution Confers Too Much Power

No less disturbing to these critics of the Constitution were specific provisions which seemed to be inconsistent with the ideals of limited constitutional government. Elbridge Gerry, a delegate to the Federal Convention from Massachusetts who refused to sign the Constitution, spoke for most Anti-Federalists when he challenged the Constitution’s broad delegations of power. In addition to the problems of representation and Congressional control of elections, “some of the powers of the Legislature are ambiguous, and others indefinite and dangerous.” The President “is balanced with and will have undue influence over the Legislature.” The Federal Judiciary “will be oppressive.” And, Gerry argued, “the system is without the security of a bill of rights.”

An Imperial Congress

Among the powers delegated to Congress, those authorizing the national legislature to provide for the general welfare, levy taxes, regulate the States’ militia, regulate interstate commerce, and make all laws necessary and proper, gave the Anti-Federalists their deepest misgivings. “Brutus,” writing in the New York Journal, offered one of the most perceptive and far-reaching examinations of Congressional power from the Anti-Federalist perspective. The “most natural and grammatical” construction of the General Welfare Clause in Article I, he observed, is that it authorizes the Congress “to do anything which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases. …” The tax power is fundamentally unsound because “there is no limitation on this power” and Congress could levy any amount that it pleases, for any purpose, leaving the States no source of revenue. “This power therefore is neither more nor less than a power to lay and collect taxes, imposts, and excises, at their pleasure.”

Likewise, the necessary and proper clause, wrote “Brutus,” “is a power very comprehensive and … [may] be exercised in such manner as entirely to abolish the State legislatures.” Taking the General Welfare, Tax, and Necessary and Proper clauses together, concluded “Brutus,” “It is therefore evident that the legislature under this Constitution may pass any law which they may think proper.”

There was also criticism of the Commerce Clause, mostly from the southern States. What is meant by the power to “regulate”? What, precisely, is “commerce”? The Constitution did not define these terms. Although vagueness and the possibility of an indefinite grant of power were considerations, the southern Anti-Federalists were especially concerned that northern States might use their superior numbers in the Congress to discriminate against southern commercial and economic interests.

It was Patrick Henry who opposed the Constitution because it impeded majority rule. On the question of commerce, however, the Anti-Federalists argued that majority rule was not enough: extraordinary or “super” majorities ought to be required for the enactment of commercial laws, in order to protect the agricultural interests of the South. Richard Henry Lee of Virginia thus complained that, “In this congressional legislature a bare majority of votes can enact commercial laws, so that the representatives of seven Northern States, as they will have a majority, can by law create the most oppressive monopoly upon the five Southern States.” Opposition to the Constitution, it may thus be seen, stemmed not only from republican considerations and a general distrust of centralized power, but from other causes as well, including sectional differences and jealousies among the States.

An Elected Monarch

Nor was Anti-Federalist dissatisfaction with Federal power under the new Constitution limited to Congress. Patrick Henry alleged that the Constitution “has an awful squinting; it squints towards monarchy. … Your President may easily become king.” A New York Anti-Federalist, writing under the name of “Cato,” repeated the charge, asserting that the Constitution inclines toward an “odious aristocracy and monarchy.” The President, he said, has so much power that his office “differs very immaterially from the establishment of monarchy in Great Britain.”

An Omnipotent Judiciary

The Anti-Federalists were also generally agreed that the Federal Judiciary would swallow up the State courts under the new system of government. “Brutus” addressed the issue at considerable length, producing what are surely the most extensive analyses of judicial power written by an Anti-Federalist. His main concern was Article III, Section 2, which provides that “The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws, and treaties made, or which shall be made, under their authority.” This can only mean, said “Brutus,” that Article III vests the judicial branch “with a power to resolve all questions that may arise in any case on the construction of the Constitution, either in law or in equity.” By what principles of interpretation, he asked, is the Constitution to be construed?

Since the Federal courts were empowered to decide cases in equity as well as law, it appeared that the Federal judges were free to interpret the Constitution “according to the reasoning and spirit of it, without being confined to the words or letter.” This was true, said “Brutus,” because equity law gave the courts broad discretion. Equity law emerged not in the common law courts of England, which follow strict rules of construction, but in the courts of chancery, which follow virtually no principles of interpretation. The goal of equity jurisprudence is “natural justice”; it seeks to produce fairness, as the judges understand it, and to override the common law when it stands in the way of this objective. Quoting Hugo Grotius, the great scholar of international law, “Brutus” contended “That equity, thus depending essentially upon each individual case [rather than precedent], there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law.”

It therefore followed, said Brutus, that “The judicial power will operate to effect in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the Constitution: an entire subversion of the legislative, executive, and judicial powers of the individual States.” The inquiring citizen, he concluded, need only examine the Constitution itself, written “in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions,” to appreciate the truth of these remarks. “I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers.”

In light of criticisms like these, the Anti-Federalists insisted that the Constitution must either be rejected or substantially amended. Their points of disagreement with the basic design of the system and its particular provisions varied from writer to writer, and they did not agree in all respects. Taken together, however, their writings demonstrated a remarkable uniformity when we consider the distances in time and location, and the limited means of communication from one State to the next in that era. And on one issue they were almost unanimously agreed: the Constitution, because it conferred so much power upon the Federal government, was a threat to personal freedom and States’ Rights. They believed, therefore, that prohibiting the Federal government from abridging certain freedoms was absolutely essential. In the end, the Anti-Federalists were wholly unsuccessful in their effort to change the language of the Constitution and limit the power of the Federal government. They did succeed, however, in persuading the Federalists to add a bill of rights to the Constitution. This was their most important and lasting contribution to the making of the American Constitution.

B.

THE FEDERALIST RESPONSE

Although the essays written by Hamilton, Madison, and Jay (“Publius”) in The Federalist were by no means the only thoughtful response to Anti-Federalists’ arguments, they were surely the most influential. Over the years they have come to be recognized as a primary source of understanding concerning the meaning and purpose of the Constitution. Indeed, no study of our political system and the ideas of the Framers is complete without a reading of this great American classic.

In defending the Constitution, the authors of The Federalist faced the difficult task of explaining and justifying a document that differed sharply from the Articles of Confederation. Although the Articles were unsatisfactory in a number of ways, they were nevertheless tolerable to a great many Americans. There had been no popular uprisings anywhere in the country demanding a new constitution, and many prominent political leaders—now Anti-Federalists—preferred a modest revision rather than abandonment of the Articles.

The Federalists thus found themselves in the awkward position of defending what appeared to be, at least on the surface, a radical and revolutionary change of government. Many though not all of the delegates to the Federal Convention had been instructed by their States to seek a modification of the Articles—not their wholesale elimination. These delegates were therefore highly vulnerable to the charge that they had violated the trust that had been placed in them, and had acted ultra vires (beyond the power vested in them). The Constitution itself, as the Anti-Federalists hotly contended, displayed all the characteristics of a novel experiment in government. The basic question was whether it strengthened and preserved freedom and independence, or whether it nullified the hard-fought gains of the American Revolution and promised to return America to the kind of tyranny it had known under George III.

The Constitution Limits and Distributes Power

The question was one of power, the Federalists arguing that the Articles of Confederation conferred too little power on the Federal government, and the Anti-Federalists asserting that the Constitution gave it too much. Conceding the point that the Constitution clearly increased the powers of the Federal government, the Federalists nonetheless insisted that the document had been carefully drafted to limit those powers. These limitations were sufficient, they contended, to allow for healthy and vigorous government, while at the same time preventing abuses of power. It was to be a powerful government, more powerful than the American people had known since the Revolution, the Federalists admitted. But it was not so powerful as to constitute a serious threat to liberty, and certainly not as powerful as the English monarchy.

This was true, said “Publius,” because the Constitution disallowed concentrations of power. No single government, either Federal or State, possessed all the powers of government. Political power, in general, was divided between two levels of government under the principle of federalism. The national government was to be a government of limited and enumerated powers that were specifically laid out in the Constitution. Those powers not delegated to the national government remained with the States as “reserved” powers. The limited power that the national government possessed was further restricted because it was separated among three relatively independent branches—Congress, the President, and the Judiciary. This provided the machinery for the responsible exercise of power. The problem with the Articles of Confederation was that they did not provide for a proper distribution of power. Too much power had been concentrated in the States, making it difficult for the national government to deal effectively with foreign governments, interstate rivalries, insurrections, and military threats. And, what little power the national government did possess was concentrated in one branch—Congress. The government of the United States under the Articles thus suffered from “anarchy in the parts” rather than “tyranny in the head.” It was so weak, the Federalists argued, that it could not promote economic prosperity or provide for the safety of the people. These were the bare essentials of government. The new Constitution, as the Preamble stated, promised to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty. …”

The first step in gaining public support for the proposed Constitution was to explain and justify the redistribution of power crafted by the Framers. The American system of federalism, unprecedented in the history of nations, was a unique arrangement that seemed foreign to some and unworkable to others. What was the nature of this new union? If sovereignty was to be divided between the general or Federal government and the States, who had ultimate authority to govern? These were difficult questions, but the authors of The Federalist answered them with consummate skill.

The nature of the new union, explained Madison, was neither wholly national nor wholly federal, but contained both national and federal elements. Regarding the basic foundation of the government, it was federal because the Constitution must be ratified by the several States. With respect to the legislature, the new Union was partly national and partly federal, one house resting on a national and the other on a federal basis. The presidency was also partly national and partly federal, since the electoral vote was distributed partly in accordance with the principle of State equality, and partly according to population. Considering the operation of the government, it was seen as national rather than federal, inasmuch as it acted directly on individuals and not through the States. In the extent of its powers, however, the Union was federal because its jurisdiction was limited to specific objects, and all else was left to the States. Thus the government of the United States was to be neither a pure confederacy nor a “consolidated republic,” but a new type of government, in a class by itself.

The States had not been reduced to provinces, the Federalists insisted, but remained in possession of “certain exclusive and very important portions of sovereign power.” They still held “all the rights of sovereignty which were not … exclusively delegated to the United States.” In a consolidated system, the local authorities are subject to control by the central government; but in the proposed Union the local authorities form distinct and independent portions of the supremacy, no more subject to the general authority than the general authority is to them within its own sphere.” The States may not be completely sovereign, but they did have a residuary sovereignty.

Such was the nature of legal sovereignty under the Constitution. Real or political sovereignty rested, of course, not with the Federal or State governments, but with the “people.” “The ultimate authority,” concluded The Federalist, “resides in the people alone.”

It therefore followed that the federal principle, woven into the entire fabric of the Constitution, would limit the power of both the Federal and State governments, while happily combining the best characteristics of both. The Anti-Federalists’ claim that the Federal government would usurp the powers of the States, argued Madison in Federalist 45, was false. It was more likely that the States would continue to dominate the national government. They had the advantage with respect “to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.”

Of paramount importance under the new scheme were the State legislatures. The President could not even be elected unless they acted. They played a key role in his election. Moreover, they elected the members of the Senate and would probably influence the election of members of the House of Representatives as well. Both the legislative and executive branches of the Federal government, in other words, owed their very existence to the State legislatures. Added to this, the States would exercise far more influence in public affairs because more people were employed under their authority than under that of the general government. “The members of the legislative, executive and judiciary departments of thirteen and more States; the justices of peace, officers of militia, ministerial officers of justice, with all the county corporation and town-officers, for three millions and more of people, intermixed and having particular acquaintance with every class and circle of people, must exceed beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system.”

Accustomed to their own State constitutions, which except in Massachusetts and a few other States generally failed to provide for sufficient checks and balances, some Anti-Federalists also criticized the separation of powers system of the Constitution. There was too much “blending,” they argued, and the departments ought to be kept wholly separate and distinct. Not all Anti-Federalists shared this view, however, and many accepted the argument of Madison in Federalist 47 that some overlapping of functions was necessary in order to prevent one branch from encroaching upon the functions of another. Hence the issue of separation of powers did not become a major bone of contention in the struggle over ratification of the Constitution. The Anti-Federalists were preoccupied with the question of States’ Rights. This was the theme song of their campaign against the Constitution.

In response to the many complaints that the proposed Constitution not only redistributed power improperly but also failed to limit the powers that had now been shifted to the Federal government, the authors of The Federalist assured their adversaries that such fears were unfounded. “The powers delegated by the proposed Constitution to the Federal government,” said Madison in Federalist 45, “are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The scope of Federal power would be limited primarily to military and foreign affairs, foreign commerce and taxation. The States, he continued, would retain full authority over matters pertaining to civil liberties and the rights of property, the internal affairs of the States, and the administration of law and order.

Congress Is Not an Oligarchy

Turning to specific complaints lodged against the Constitution respecting the enumerated powers of Congress, Publius denied the allegation that the “times, places and manner” provision, which gave Congress concurrent authority to regulate the election of its own members, would displace the State legislatures. The States would regulate Federal elections in the first instance, contended Alexander Hamilton in Federalist 59, and Congress would not generally interfere except when “extraordinary circumstances might render the interposition necessary to its safety.” The “times, places and manner” clause was simply a device to protect Congress from being placed at the mercy of the States. Without it, the States might prevent the election of members of Congress altogether. It was justified by the general principle that “every government ought to contain in itself the means of its own preservation.”

Anti-Federalist arguments against the General Welfare, Tax, and Necessary and Proper clauses of Article I, and the Supremacy Clause of Article VI, were also not justified, the Federalists countered. A proper interpretation of these provisions, said The Federalist, showed they were entirely consistent with the principles of limited government. The power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare” was not an “unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” Congress had not been given a general power to legislate for the general welfare, because the General Welfare Clause was tied inextricably to the power to tax and spend. Congress, said Madison in Federalist 41, could tax and spend only to carry out one of its enumerated powers. Any other interpretation would render superfluous the specific enumeration of other Congressional powers.

It was true, of course, that the Framers had placed no limit on the amount that might be taxed. It would not be practical, the Federalists believed, to do so. In time of war and national emergencies, suggested Hamilton in Federalist 34, the situation might call for added revenue. “Constitutions of civil government are not to be framed upon a calculation of existing emergencies. … There ought to be a capacity to provide for future contingencies, as these may happen; and, as these are illimitable in their nature, it is impossible safely to limit that capacity.” Given the various constitutional restraints on government and the system of popular control over members of Congress, abuses of the tax power thus seemed remote.

Similarly unwarranted, argued Publius, were Anti-Federalist assaults on the Necessary and Proper and Supremacy clauses. “These two clauses,” observed Hamilton in Federalist 33, “have been sources of much virulent invective and petulant declamation. … [and] have been held up to the people, in all the exaggerated colors of misrepresentation, as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated.” Upon close examination, however, it was clear that both clauses were “perfectly harmless.” Indeed, wrote Hamilton, “the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated. … They are only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of constituting a Federal government, and vesting it with certain specified powers.” By this he meant that the Necessary and Proper clause was intended “to leave nothing to construction” and to remove all doubt that the delegation of certain powers to Congress carried with it the implied right to execute those powers by necessary and proper laws; and that the Supremacy Clause simply acknowledged the fact that “a law by the very meaning of the term includes supremacy.” The supremacy of national laws “flows immediately and necessarily from the institution of a Federal government.” The States were protected by language which “expressly confines this supremacy to laws made pursuant to the Constitution.”

The President Is Not a King

Anti-Federalist arguments that the President and the Federal courts also enjoyed excessive amounts of power under the proposed Constitution were also rebutted by Hamilton, principally in Federalist 69 and Federalist 78. Particularly weak was the charge that the President had been endowed with all of the rights and prerogatives of an English monarch. Astutely noting that the powers of the Chief Executive did not differ remarkably from those already being exercised by many State governors, Hamilton spelled out in exhaustive detail the differences between the President and the King of Great Britain: the President was elected by the people for four years, whereas the King is a perpetual hereditary prince; the President can be impeached and removed from office, whereas the person of the King is “sacred and inviolable”; the President has a qualified veto, whereas that of the King is absolute; the President is commander-in-chief of the armed forces, whereas the King not only raises and commands the military but may also declare war on his own authority; the President shares the treaty-making and appointment power with the legislature, whereas the King alone exercises these powers. These, and countless other differences, distinguished the two offices. “What answer,” asked Hamilton, “shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us, that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.”

The Judiciary Is the Least Dangerous Branch

On the question of Federal judicial power, however, Hamilton dismissed many of the Anti-Federalist objections out of hand, and never really came to grips with the issue. In Federalist 78, he argued persuasively for the principle of judicial independence, but the thought that Federal judges might usurp the powers of the State courts received only passing notice. The possibility that Federal judges might also encroach upon the powers of Congress or the President seemed equally remote. Historically, courts of law had served the interests of liberty as barriers to despotism. Because of the limited nature of their function—interpreting the law—they “will always be the least dangerous” branch. Under the Constitution, observed Hamilton, “The judiciary. … has no influence over either the sword or the purse, no direction either of the strength or of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

In sum, “the judiciary is beyond comparison the weakest of the three departments of power.” “[T]he supposed danger of judiciary encroachments on the legislative authority,” Hamilton surmised, “is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.”

Whether a Bill of Rights Was Necessary

On May 28, 1788, one year after the delegates to the Constitutional Convention had convened in Philadelphia to begin their deliberations, Alexander Hamilton published his reply to the Anti-Federalists on the question of a bill of rights. Not until the final hours of the Convention had the thought occurred to any delegate that a bill of rights ought to be included in the Constitution. It was then that George Mason of Virginia made the proposal, and Elbridge Gerry of Massachusetts moved to appoint a committee to draft a “declaration of rights.” The motion was voted down unanimously (that is, by all of the States represented), because the general consensus was that a bill of rights was not necessary. This was essentially the same position taken by Hamilton in Federalist 84.

Opposition to a bill of rights did not stem from indifference or hostility toward civil rights, but from the widely held belief that a declaration of rights would be superfluous. The Federal government was to be a government of delegated and enumerated powers. It had no authority to interfere with such matters as speech and religion. A declaration that it had no such authority would merely make explicit what was already implicit in the Constitution, with excess verbiage that simply stated what was already obvious.

To this, Hamilton added other objections. First, the Constitution already contained specific guarantees of liberty. “The establishment of the writ of habeas corpus, the prohibition of ex post facto laws and of titles of nobility,” he asserted, “are perhaps greater securities to liberty and republicanism” than any provided by his own Constitution of New York.

Second, a bill of rights does not properly belong in this kind of Constitution. Such bills of rights are ordinarily stipulations between kings and their subjects, “reservations of rights not surrendered to the prince”—as seen in the Magna Charta, the Petition of Right, and the English Bill of Rights of 1688. Hence, Hamilton argued,“they have no application to constitutions professedly founded upon the power of the people” because “in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations.” The Preamble of the Constitution, he believed, “is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.”

Third, said Hamilton, a bill of rights might even be dangerous. By listing freedoms that the Federal government could not deny, the government, by implication, would be free to deny those rights that had not been included. A bill of rights, he reasoned, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than was granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

Fourth, there was no clear understanding concerning the precise meaning of the liberties claimed, and the standards varied from State to State. “What signifies a declaration that ‘the liberty of the press shall be inviolably preserved’? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?” If freedom of the press is to be enjoyed, Hamilton argued, it will be because of public opinion and the spirit of the people, not because of “fine declarations.”

Finally, a bill of rights was not needed, Hamilton maintained, because the Constitution was itself a bill of rights. What protects liberty and gives it meaning and substance is the structure of government—concrete limitations on power, not parchment declarations. If a constitution—and that of the United States is such a constitution—is properly designed to check abuses of power, the government upon which it rests will in the general course of events discourage political authorities from trampling on the liberties of the people. The privileges and immunities that might be proclaimed in such a bill of rights were already embodied in the original document.

In the end, Hamilton’s view did not prevail. The ratification struggle began as soon as Congress submitted the Constitution to the States, and the Anti-Federalists steadfastly held their position that a bill of rights was essential. This issue overshadowed all others, including the issues of legislative power and representation. Although ratification was secured within nine months, the margin of victory in at least half of the States was narrow. Had the Federalists refused to budge on the bill of rights question, it is not unlikely that the proposed Constitution would have been defeated.

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.”

The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition

We hear a good deal nowadays about “a wall of separation” between church and state in America. To some people’s surprise, this phrase cannot be found in either the Constitution or the Declaration of Independence. Actually, the phrase occurs in a letter from Thomas Jefferson, as a candidate for office, to an assembly of Baptists in Connecticut.

The first clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause is followed by guarantees of freedom of speech, of publication, of assembly, and of petitioning. These various aspects of liberty were lumped together in the First Amendment for the sake of convenience; Congress had originally intended to assign “establishment of religion” to a separate amendment because the relationships between state and church are considerably different from the civil liberties of speech, publication, assembly, and petitioning.

The purpose of the “Establishment Clause” was two-fold: (1) to prohibit Congress from imposing a national religion upon the people; and (2) to prohibit Congress (and the Federal government generally) from interfering with existing church-state relations in the several States. Thus the “Establishment Clause” is linked directly to the “Free Exercise Clause.” It was designed to promote religious freedom by forbidding Congress to prefer one religious sect over other religious sects. It was also intended, however, to assure each State that its reserved powers included the power to decide for itself, under its own constitution or bill of rights, what kind of relationship it wanted with religious denominations in the State. Hence the importance of the word “respecting”: Congress shall make no law “respecting,” that is, touching or dealing with, the subject of religious establishment.

In effect, this “Establishment Clause” was a compromise between two eminent members of the first Congress—James Madison and Fisher Ames. Representative Ames, from Massachusetts, was a Federalist. In his own State, and also in Connecticut, there still was an established church—the Congregational Church. By 1787–1791, an “established church” was one which was formally recognized by a State government as the publicly preferred form of religion. Such a church was entitled to certain taxes, called tithes, that were collected from the public by the State. Earlier, several other of Britain’s colonies had recognized established churches, but those other establishments had vanished during the Revolution.

Now, if Congress had established a national church—and many countries, in the eighteenth century, had official national churches—probably it would have chosen to establish the Episcopal Church, related to the Church of England. For Episcopalians constituted the most numerous and influential Christian denomination in the United States. Had the Episcopal Church been so established nationally, the Congregational Church would have been disestablished in Massachusetts and Connecticut. Therefore, Fisher Ames and his Massachusetts constituents in 1789 were eager for a constitutional amendment that would not permit Congress to establish any national church or disestablish any State church.

The motive of James Madison for advocating the Establishment Clause of the First Amendment was somewhat different. Madison believed that for the Federal government to establish one church—the Episcopal Church, say—would vex the numerous Congregationalist, Presbyterian, Baptist, Methodist, Quaker, and other religious denominations. After all, it seemed hard enough to hold the United States together in those first months of the Constitution without stirring up religious controversies. So Madison, who was generally in favor of religious toleration, strongly advocated an Establishment Clause on the ground that it would avert disunity in the Republic.

In short, the Establishment Clause of the First Amendment was not intended as a declaration of governmental hostility toward religion, or even of governmental neutrality in the debate between believers and non-believers. It was simply a device for keeping religious passions out of American politics. The phrase “or prohibiting the free exercise thereof” was meant to keep the Congress from ever meddling in the disputes among religious bodies or interfering with the mode of worship.

During the nineteenth century, at least, State governments would have been free to establish State churches, had they desired to do so. The Establishment Clause restrained only Congress—not State legislatures. But the States were no more interested in establishing a particular church than was Congress, and the two New England States where Congregationalism was established eventually gave up their establishments—Connecticut in 1818, Massachusetts in 1833.

The remainder of the First Amendment is a guarantee of reasonable freedom of speech, publication, assembly, and petition. A key word in this declaration that the Congress must not abridge these freedoms is the article “the”—abridging the freedom of speech and press. For what the Congress had in mind, in 1789, was the civil freedom to which Americans already were accustomed, and which they had inherited from Britain. In effect, the clause means “that freedom of speech and press which prevails today.” In 1789, this meant that Congress was prohibited from engaging in the practice of “prior censorship”—prohibiting a speech or publication without advance approval of an executive official. The courts today give a much broader interpretation to the clause. This does not mean, however, that the First Amendment guarantees any absolute or perfect freedom to shout whatever one wishes, print whatever one likes, assemble in a crowd wherever or whenever it suits a crowd’s fancy, or present a petition to Congress or some other public body in a context of violence. Civil liberty as understood in the Constitution is ordered liberty, not license to indulge every impulse and certainly not license to overthrow the Constitution itself.

As one of the more famous of Supreme Court Justices, Oliver Wendell Holmes, put this matter, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Similarly, statutes that prohibit the publication of obscenities, libels, and calls to violence are generally held by the courts to conform to the First Amendment. For example, public assemblies can be forbidden or dispersed by local authorities when crowds threaten to turn into violent mobs. And even public petitions to the legislative or the executive branch of government must be presented in accordance with certain rules, or else they may be lawfully rejected.

The Constitution recognizes no “absolute” rights. A Justice of the Supreme Court observed years ago that “The Bill of Rights is not a suicide pact.” Instead, the First Amendment is a reaffirmation of certain long-observed civil freedoms, and it is not a guarantee that citizens will go unpunished however outrageous their words, publications, street conduct, or mode of addressing public officials. The original, and in many ways the most important, purpose of freedom of speech and press is that it affords citizens an opportunity to criticize government—favorably and unfavorably—and to hold public officials accountable for their actions. It thus serves to keep the public informed and encourages the free exchange of ideas.

The Second Amendment: The Right to Bear Arms

This amendment consists of a single sentence: “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.”

Although today we tend to think of the “militia” as the armed forces or national guard, the original meaning of the word was “the armed citizenry.” One of the purposes of the Second Amendment was to prevent Congress from disarming the State militias. The phrasing of the Amendment was directly influenced by the American Revolutionary experience. During the initial phases of that conflict, Americans relied on the militia to confront the British regular army. The right of each State to maintain its own militia was thought by the founding generation to be a critical safeguard against “standing armies” and tyrants, both foreign and domestic.

The Second Amendment also affirms an individual’s right to keep and bear arms. Since the Amendment limits only Congress, the States are free to regulate the possession and carrying of weapons in accordance with their own constitutions and bills of rights. “The right of the citizens to keep and bear arms,” observed Justice Joseph Story of the Supreme Court in his Commentaries on the Constitution (1833), “has justly been considered as the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” Thus a disarmed population cannot easily resist or overthrow tyrannical government. The right is not absolute, of course, and the Federal courts have upheld Federal laws that limit the sale, possession, and transportation of certain kinds of weapons, such as machine guns and sawed-off shotguns. To what extent Congress can restrict the right is a matter of considerable uncertainty because the Federal courts have not attempted to define its limits.